MUHAMMAD NAEEM ANW AR, J. Through this civil revision under section 115 of the Code of Civil Procedure, 1908, the petitioner questioned the validity and corrections of judgment and decree of learned Additional District Judge, Katlong, Mardan, dated 27.03.2018, whereby civil appeal filed by him was dismissed, consequently , the judgment and decree of learned Civil Judge, Katlong, dated 16.1 1.2017 was upheld.
2. Facts, which are necessary for the disposal of this civil revision, are that the petitioner/plaintif f filed a suit for recovery of possession through pre-emption in respect of property bearing Khasra Nos. 3533/1, 4566,4534,4536,4533,4564,4565,4566/1, situated in Tehsil Katlong, boundaries whereof were properly mentioned in head note "A" of the plaint, measuring 56 kanals through unregistered deed No. 5006 dated 13.11.2016, by alleging therein that he has got superior right of pre-emption being co-sharer , contiguous owner and having got right of appendages with respect to property , as against defendant/respondent. It was elaborated that regarding the sale of property , he was informed by Haya t Muhammad, in presence of Bakht Jamal and Sher Akbar , on 06.01.207 9 (Friday) at about 04.30 p.m, in his "HUJRA", situated in Deh Kunj, he then and there announced his intention to pre-emptor the suit property and, thereaf ter, on 09.01.2017, in confirmation of Talb-e-muwathibat, sent a notice of Talb-i-ish'had through registered post. It was also prayed that defendant/respondent be restrained from its further alienation through any mode and from changing the character of the suit property .
3. While putting appearance before trial court, defendant/respondent contested the suit through his detailed written statement. Learned trial court framed the issues from conflicting pleadings and parties were directed to submit the list of witnesses, deposit the diet money for official witnesses and fixed the case for recording of the evidence on 16.11.2017, however , all of sudden, the learned trial court has fixed it for arguments on maintainability and while making discussion on the points, such as:-
(i) Record does not suggest that pre-emptor/plaintif f made immediate demand, i.e., Talb-e-muwathibat just after getting the knowledge,
(ii) That the pre-emptor has not pre-empted the second sale and not impleaded the subsequent vendee, and
(iii) Names for the witnesses of notice of talb-i-ish'had were not mentioned in plaint.
While considering the aforementioned three aspects of the case, the learned trial court concluded that the plaint in the said sequence of events does not disclose cause of action, thus, while invoking the provisions of Order VII rule 11 C.P .C, the plaint was rejected.
4. The petitioner/plaintif f being unhappy with the dismissal of his suit, assailed it before appellate court, through appeal, where his appeal to the extent of point No. (i) that is performance of first Talab i.e., Talb-i-muwathibat before dispersal of majlis and point No. (ii) i.e., pre-empting the subsequent sale, were accepted, findings to that effect were turned down, however , the findings of learned trial court to the extent that names of witnesses of talb-i- ish'had, the time and place where notice was scribed were uphold, so, the pre-emptor remained non-suited on this score only , hence, this civil revision.
5. Learned counsel for the petitioner contended that for the purpose of invoking the provisions of Order VII rule 11 C.P.C only the contents of plaint were to be considered, wherein the details were properly given in respect of the entire facts of requisite talabs. According to him, notice of talb-i-ish'had was annexed with plaint wherein the date, name of witnesses and the place where notice was written were mentioned, therefore, the requirements, which were sina qua non, were properly complied with. In support of his submission he relied on 2019 YLR 408, 2019 CLC 490 , 2019 MLD 195 and 2019 YLR 730 .
6. As against that, learned counsel for respondent argued that it was mandatory for pre-emptor to have mentioned in the plaint the names of witnesses of notice of talb-i-ish'had, the time and place where it was scribed. He also added that as the property was purchased by respondent, he has further alienated it to Purdil Khan but the pre- emptor neither pre-empted the subsequent sale nor made Purdil Khan as party . Lastly , contended that immediate demand as required by the pre-emptor was not made, thus, the suit could not be proceeded, therefore, the learned trial court has rightly non-suited the petitioner .
7. I have heard the learned counsel for the parties and have perused the record.
8. Admittedly , the petitioner/plaintif f was non suit on three grounds, however , his appeal was allowed in respect of two grounds and only one which remained in field was that names of witnesses, time and place was not given in the plaint, thus, the arguments of learned counsel for the respondent in respect of further alienation of suit property and the factum of talb-i-muwathibat have got no force as after acceptance of appeal of petitioner , the respondent has neither filed any appeal nor submitted cross objection when revision was filed, as provided in Order XLI rule 22 of the Code of Civil Procedure 1908. In this regard, reliance is placed on the case law as reported in case PLD 2011 SC 1 19 wherein it was held that:- "6. As mentioned earlier it is only Mst. Nasim Fouzia who had joined issue of the execution of the agreement to sell with the plaintif fs, which was found in favour of the plaintiffs and the decree for the return of Rs.5000 against her was structured thereupon, but it is not spelt out from the record if she ever challenged that decree of the trial Court through cross appeal or cross objection. She though could have verbally challenged the findings on any issue going against her at the time of c hearing of the respondents appeal while supporting the decree, but it was not legally permissible to assail the decree without cross appeal etc. therefore, such a decree for all intents and purposes which was founded on the findings of the trial Court on Issue No. i had not only attained finality against her, but also the appellants who were/are the successors in interest of the lady. Furthermore, she never challenged the judgment and decree of the first appellate Court, in second appeal, with the legal consequences that she accepted the decisions of the Courts regarding the execution of the Exh.P/1 which in law are also binding upon the appellants as well, for the reason that the appellants as mentioned earlier had never joined issue with the plaintif fs about the execution of the agreement to sell, rather made an evasive denial in their written statement expressing their lack of knowledge in this regard, which is no denial as per the provisions of Order VIII Rules 3, 4 and C.P.C., rather such a denial may be constructed as an admission on their part."
Likewise, earlier to the above mentioned case law, the said principle of law was enunciated in case titled Muzaf far Khan vs. Sanchi Khan and another reported in ( 2007 SCMR 181 ), wherein it was held that:- "7. We have carefully considered through the judgment of the trial Court and find that the submission made by the learned counsel is not without substance as the petitioner and respondent No.2 utterly failed to adduce any cogent evidence in support of their plea. Furthermore these findings were neither assailed by way of appeal nor through cross objections with the result that such findings of fact attained finality in the eyes of law, casting heavy clouds on the right, interest and title of the petitioner to claim such right or interest through his brother . Learned counsel rightly contended that since the petitioner did not assail the findings of fact as regards his right, interest and possession of the property in his own rights, he could not legally maintain Civil Revision before the High Court. Mr. Abdul Qadir Khan has drawn our attention to the judgment of this Court in the case of Masta v. Sarang and another PLD 1969 SC 261. The precedent relied upon by learned counsel fully supports his view and there can be no cavil with the proposition of law laid down by this Court."
9. Now, the question, which requires determination, was as to whether names of the witnesses of notice of Talb-i- ish'had, place and date on which it was scribed are necessary to be mentioned in the plaint and omission on the part of pre-emptor by not mentioning the same would result the dismissal of suit or rejection of plaint. The careful perusal of notice of Talb-i-ish'had would reveal that it was written on 09.01.2017, witnessed by Bakht Jamal son of Sufaid Gul and Sher Akbar son of Nadir khan. It was signed by pre-emptor , beside s witnesses, more particularly , it was written/scribed at District Courts, Mardan. Notice of Talb-i-ish'had alongwith receipt, vide which it was posted, mentioned therein that notice was sent through registered AD (Acknowledgm ent due) to the vendee, was appended with plaint. No doubt, non-mentioning of date, time and place of Talb-i-muwathibat and names of the witnesses before whom the pre-emptor has declared his intention to exercise the right in the plaint is fatal for pre- emptor as finally settled by the apex Court in the case of Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs and others (PLD 2007 SC 302). This principle has further been affirmed by the Hon'able Supreme Court of Pakistan in the case of Bashiran Begum vs. Nazar Hussain, (PLD 2008 SC 559) wherein it was held "8. We have heard the learned counsel for the respective parties and .with their help have also perused the available record. The High Court has met with all these references with sound and plausible reasons. It is to be noted that this controversy has been finally settled by a Full Bench of this Court comprising five Hon'ble Judges in Civil Appeal No.195 1 of 2000 decided on 12-12-2006 in case of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), wherein all these authorities and references have been plausibly discussed and it was held that in a suit for pre-emption mentioning of date, place and time of making Talb-i-Muwathibat, in the plaint, is mandatory because in the absence of proper date, 'place and time, the time given in section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred as the Act) for making Talb-i-Ishhad which is 14 days, cannot be correctly calculated. It is necessary that as soon as the pre-emptor acquires knowledge of sale of pre-empted property , he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and after making Talb-i-Muwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. Talb-i-Ishhad as soon as possible after making of Talb-i-Muwathibat, but not later than two weeks from the date of knowledge/performance of Talb-i-Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre-emption is mandatory regarding Talb-i- Muwathibat because from such date the time provided by the statute for making of Talb-i-Ishhad i.e. 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to section 13(3) of the Act and there is every possibility that instead of allowin g letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in court and then on the basis of the same, try to justify the delay , if any, occurred in the performance of Talb-i-Ishhad.
Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date, place and time of making of Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit. The Hon'ble Bench of five Judges has dissented from the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314) and has approved the view expressed in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977). According to the dictum laid down by the larger bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint .is also essential even in the pending cases."
It is also significant to discuss that later on in case titled Ghafoor Khan vs. Israr Ahmad (2011 SCMR 1545), it was added that "non mentioning of place, date and time of talb-e-muwathibat and date of issuance of notice of Talb-i-ish'had in term of section 13 of the Punjab Pre-emption Act, 1991 is fatal for maintainability of the suit for pre- emption" , so, thereafter , number of the pre-emptors were non-suited only for non-mentioning of date of issuance of notice of talb-i-ish'had, however , the apex court in civil appeal No. 948 of 2010 decided on 11 February , 2014, in case titled Daud Shah vs. W aris Shah and other reported in 2014 SCMR 852 , wherein it was held that: "9. We have heard the learned Counsel for the parties and have perused the record. We have noticed that the appellant did mention the dates time and place of making Talb-e-Muwat hibat in the plaint, but he did not mention the date of issuance of notice of Talb-e-Ishhad. We, however , have noticed that the appellant has annexed the copies of Notices of Talb-e-Ishhad along with postal and acknowledgment receipts with the plaint. These copies of notices Talb-e-Ishhad containing requisite details along with postal/acknowledgement receipts were produced and exhibited before the trial Court without any objection from the respondents' side. The material facts were given in the notices of Talb-e-Ishhad which formed part of the plaint, therefore, omission of the nature in the plaint would not be construed fatal to entail penalty of dismissal of the suit. The omission of the date of notice in the plaint stood cured by annexing the copies of notices of Talb-e-Ishhad along with postal/ acknowledgement receipts. The judgments cited by the learned Counsel for the appellant would not be applicable to the facts of the case in hand."
10. Now, when the apex Court has held that though the date of issuance of notice of talb-i-ish'had not given in plaint but as the notice with receipt acknowledgment due annexed with plaint wherein all the details were given, thus, the omission to that effect would not be construed to be fatal to entail penalt y of dismissal of the suit. It was also clear that omission of the date of notice in the plaint stood cured by annexing the copies of notices of Talb-i- ish'had alongwith the postal receipt with AD card. Thus, on the analogy of ratio of the above quoted principle, I am of the view that names of the witnesses of notice of Talb-i-ish'had time and place of notice is not required to be specifically mentioned in the plaint as the notice is annexed with the plaint containing all the aforementioned details.
11. The petitioner 's plaint was rejected only on the ground that the said details of notice of Talb-i-Ish'had were not mentioned in the plaint, therefore, both the courts below have committed an illegality which resulted into grave miscarriage of justice, thus, this civil revision is accepted, judgment and decree of both the courts below are set aside, the plaint shall be deemed to be pending before the trial court. Learned trial court is directed to resume the trial of the case wherefrom it was discontinued. Parties shall bear their own costs.